* Pursuant to 5 T H C IR. R. 47.5, the court has determined that this opinion should not be published and is

not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-40705

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL DEWAYNE ADKISM

and

STAFFORD DEWAYNE PATTERSON,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(3:97-CR-4)

_________________________

April 26, 1999

Before REAVLEY, POLITZ, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Michael Adki sm and Stafford Patterson

raise sufficiency of the evidence and

evidentiary

challenges related to their

convictions of conspiracy to possess coc a ine

base (crack cocaine) with the inte nt to distribute and of possession with the intent to

distribute. Finding no reversible error, we

affirm.

I.

The Regional Drug Task Force and the

Mobile Enforcement Team of the Drug

Enforcement Administration (“DEA”) (collectively, the “team”) initiated a narcotics

investigation in Paris, Texas, focusing on t h e

distribution of cocaine base. They used

confidential info

rmants (“CI's”) and

undercover o fficers to purchase drugs,

recording many of the transactions on video or audio. The team made numerous buys fro m

m ost of the numerous co-conspirators named

in the indictment, i ncluding Michael Adkism,

Al Green, and Rodney Thomas, at Re cord

Park, the Westgate apartment complex, and

the Razzmatazz Club. They delayed making

arrests, however, to maximize the productivity2

of their und e rcover work. For example,

undercover officer Robert Bri dges,

accompanied by CI Archie Booker, made one

such buy-walk from Adkism at his home.

Bridges obtained 7. 2 7 grams of crack (about

1⁄4 of a crack “cookie”) for $500, and Adkism

indicated that he could sell them more.

As part of the culmin at ion of their

efforts, the team planned a buy-bust sting

operati on in which they intended to purchase

one kilo of crack from Green. William “B.B.”

Block, a/k/a Smokey, a CI working for the

DEA, who alread y had purchased a big 8 ( 

### c of a kilo) from Green, set up the deal. Green

said he would have to get a price from his

supplier, Thomas. They eventually agreed on $20,000.

Th e team originally planned to carry

out the bust at a Holiday Inn room furnished

with electroni c monitoring devices or in the

local Super On e parking lot; Green refused

both locations. Instead, he chose Johnson, or

Martin Luther King (“MLK”), Park. Block

picked up Green at Green's house and drove to the park, where they met Thomas.

Thomas had come from his brother

Kevin Thomas's house. His associate, Marcus

Hooker, had been there with him. Hooker and

Thomas originally had planned for Hooker to

stage a robbery of Thomas, so they could take

the money instead of han ding i t over to

Stafford Patterson, the supplier. They also

planned t o rob Block of the dope, hence

making a double score. Their plans were

thrown off, however, when Patterson arrived

a day earlier than expected. He showed up at

Kev in Thomas's house the day of the bust.

Perhaps suspe ct ing foul play, Patterson had

Hooker remain at the house while T homas

carried out the deal.

When Block and Green arrived at

MLK park, Thomas climbed into Block's jeep

t o explain how the deal would go down. He

said the drugs were in the park; but Block, in

an apparent effort to stall for time, informed

Thomas that he had to get t he money.

Thomas waited in

his pickup, while Block

dropped Green off at his house and met briefly with a gent s t o review the new plan for the

bust.

The tea m converged on the park.

Block climbed into Thomas's pickup and told

him t hat t he man in a Lexus parked near by

was his brother, w it h t he money. The man

actually was DEA agent Robert Crawford.

Block insisted on seeing the drugs first, and

the two men move d into the park. Thomas

had become nervous after spotting a white van

that he suspected might be law enforcement (It

was, in fact, occupied by two D EA agents,

who had backed off.). Nonetheless, Thomas

soon showed Block a brown paper bag in a

t rash can that contained a plastic bag full o f

crack (later determine d to be just under 900

grams).

Upon seeing the drugs, Block removed

his hat 

### SS a signal that the drugs were there and

they could make the arrests; no agent saw the

signal. Crawford attempted to call the agents,

but his mo bile phone did not work. While

waiting for backup so the arre sts coul d be

made, Crawford stalled Thomas. He showed

the money, counted some of it, and argued

with Thomas over whether it was all there.

Mean whi l e, Hooker had stopped by the

Razzmatazz, where he ran in to Patterson

sitting in his car. Patterson tol d hi m that

Thomas sho uld be back in 15 to 20 minutes.

Hooker proceeded to the park, where he

slowly drove past the deal as it took place. He

did not intervene.

A s time passed, Thomas gre w increasingly anxious. Crawford eventually had

to hand over all the mon ey. Thomas left in

one direction, while Block headed ano t her

with the drugs. Thomas came across Hooker

as he drove down the street, and they pulled

into a parking lot. Hooker told Thomas that

earlier he had seen several white men in a car observing the deal i n the park. Thom as took

o ff on foot with the money. He eluded

authorities for over a week whi le he blew all

the money in a hedonistic spree.

Hook e r returned to the Razzmatazz,

where he was arrested when drugs happened3

to fall out of his po cket. The team also

a rrested Patterson, apparently still in h i s vehicle. No drugs were found in his car,

however, and he was released from jail a few

days later after state charges were dropped.

While Patte r son was in jail, his wife

called co-conspirator Herbert Hill, Jr., t o

collect money he owed for crack Patterson had

fronte d him. After being released, Patterson

collected $1,200 in drug proceeds from Hill.

Another of Thomas's brothers, Clinton

Thomas, had purchased crack from Adkism

several times a week in the months preceding

t he bust. He testified that Adkism became

nervous after the bust and briefly left t o wn.

He returned, however, an d continued selling

crack out of his home until arr ested on the

federal indictment.

II.

A grand jury returned a twenty-sixcount indictment against thirteen defendants.

Adkism and P at terson were charged with

c onspiring with Christopher Burns, Ronnie

Davis, John Fisher, Terry Hearn, Aubrey

Jenkins, Ran dy Miles, Green, Hill, Hooker,

and other. The grand jury named Thomas as

an unindicted co -conspi rator. Ten of the coconspirers pleaded guilty to various charges

and several, including Thomas, testi f ied at

trial. Thomas said that Patterson supplied him,

Adkism, Green, and Hill with cr ack. They

purchased it from Patterson to resell in smaller

amounts.

Th e grand jury returned a five-count

superseding indictment again st Patterson and

Adkism. 1 A petit jury returned a guilty verdict on counts 1, 2 and 4.

III.

A.

The defendants contend tha t the

d ist rict court erred in refusing to exclude

testimony obtained from co-conspirat o rs

pursuant to plea agreements. The court

should have excluded this testimony, they

aver, because it violates 1 8 U.S.C. §

201(c)(2), which prohibits giving or promising

a witness anything of value in exchange for his

testimony. Adkism and Patterson do not seek

a new trial but argue that when conducting our sufficiency of the evidence review, we may not

consider evidence obtained in violation of the

statute.

After the defendants submitted their

brief, we dec i ded United States v. Webster

, 162 F. 3d 308 (5th Ci r. 1998), and U nited

States v. Haese

, 162 F.3d 359 (5th Cir. 1998),

in which we addressed and rejected the

Singleton argument 2 raised here. In Webster

,

we reviewed for plain error and found that any

error made was not plain. S ee Webster

, 162 F.3d at 357-58. In H aese

, aga i n reviewing for plain error, we went further and

rejected the argumen t alt ogether. We held

that “it is evident to this court that Congress

did not intend for section 201(c)(2) to be used

when prosecutors offer l enity for a witness'

truthful testimony.” Haese

, 162 F.3d at 367.

Testimony induc ed by plea bargains is not

illegal. The court did not err in admitting the

testimony, and we may consider it here.

1 The grand jury charged both Adkism and

Patterson in count 1 with conspiracy to possess a

co ntrolled substance, 50 grams or more of cocaine

base, with intent to distribute, in violation of 21 U.S.C.

§ 846. Adkism was charged in count 2 with

possession with intent to distribute and distribution of

crack cocaine, in violation of 21 U.S.C. § 841(a), and

in count 3 with the use of a communication facility to

commit a controlled substance offense, in violation of

21 U.S.C. § 843. Patterson was charged in counts 4

(continued...) (...continued)

and 5 with a violation of 21 U.S.C. § 841, and with

distributing and possessi ng with intent to distribute

c r ack cocaine within 1,000 feet of a playground, in

violation of 21 U.S.C. § 860, respectively. The grand

jury included a violation of 18 U.S.C. § 2 (aiding and

abetting) with each of the five counts. Counts 3 and 5

were later dismissed.

2 The argument is so named because of United

States v. Singleto n

, 144 F.3d 1343 (10th Cir. 1998), in

which the court adopted it. That decision has since been

vacated and the case reheard en ban c, whereupon the

court rejected the notion that testimony obtained via plea

agreements violates § 201(c)(2). S ee U nited States v.

Singleton , 165 F.3d 1297 (10th Cir. 1999) (en banc).4 B.

Adkism and Patterson contend that the

government presented i nsufficient evidence

that they conspired to possess crack c ocaine

with the intent to distribute it. They raise both

legal and factual sufficiency challenges.

1.

“Our review for sufficiency of the

evidence following a convictio n is narrow.” 3

We vi ew the evidence and all reasonable

inferences that can be drawn therefrom in the

light most favorable to the verdict. S ee United

States v. Burton

, 126 F.3d 666, 669 (5th Cir.

1997). Ordinarily, we must affirm if a rational

trier of fact could h ave found that the

g o vernment proved the offense's essential

elements beyond a reasonable doubt. J ackson

v. Virginia

, 443 U.S. 307, 319 (1979); Burton

, 126 F.3d at 669. The evidence need not

exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every

conclusion except that of guilt, and the jury is

free to choose among reasonable constructions

of the evidence. S ee id .; Westbrook

, 119 F.3d

at 1189.

The defendants moved for a judgment

of acquittal at the end of the government's

evidence but failed to renew the motion at the

close of their evidence. In these

circumstances, our r eview is even more

narrow: We will reverse only if a conviction

results in a manifest miscarriage of justice. S ee

United States v. Rivas

, 157 F.3d 364, 368 (5th

Cir. 1998); United States v. Inocencio

, 40 F.3d 716, 724 (5th Ci r. 1995). “Such a

miscarriage wo uld exist only if the record is

devoid o f evidence pointing to guilt, or . . .

because the evidence on a key element of the

offense was so tenuous that a conviction

wo uld be shocking.” I

nocencio

, 40 F.3d at

724 (quoting United States v. Pierre

, 958 F.2d

1304, 1310 (5th Cir. 1992) (en banc)).

2. To obtain a conviction of conspiring to

violate the drug law s under 21 U.S.C. § 846,

the government must prove (1) an agreement

between two or more persons to violate the

drug laws, (2) that each alleged co-conspirator

k new o f and intended to join the agreement,

and (3 ) that each co-conspirator voluntarily

participated in

t he agreement. 4 An express

agreement is not r equired; a tacit agreement

suffices. S ee Westbrook

, 119 F.3d at 1189.

The elemen t s may be established by

circumstantial evidence. S ee id

. The

agreement “may be inferred from concert of

action. Knowledge of the conspiracy may be

i nferred from a collection of circumstances.”

Dixon

, 132 F.3d at 201. “[V]ol untary

pa rt icipation may be inferred from a

devel opm ent and collocation of

circumstances.” Id . (quotation omitted).

A guilty conspirator “need not know

all the details of the unlawful ente r prise or

know the exact number or identity of all the

co-conspirators, so long as he knowi ngly

participates in some fashion i n t he larger

objectives of the conspiracy.” W estbr ook

, 119 F.3d at 1189. A jury may convict "where

a pivotal figure directs and organizes the illegal

activity, and has extensive dealings with each

of the parti es. Thus, parties who knowingly

participate with core conspirators to achieve a

common goal may be members of an ove rall

conspiracy, even in the absence of contact with

other conspirators.” I

no cencio , 40 F.3d at

725 (quotati ons and citations omitted). If the

government has established the existence of an illegal conspiracy, then “it need only introduce

slight evidence to connect an individual

defendant t o t he common scheme.”

Westbrook

, 119 F.3d at 1190 (internal

quotation marks omitted).

One who aids and abets an offense may

be punished as a principal. S ee Burton

, 126 F.3d at 670. To obtain a conviction of

aiding and abett ing, the government must

3 United States v. Westbrook

, 119 F.3d 1176,

1189 (5th Cir. 1997), cert. denied

, 118 S. Ct. 1059, and

cert. denied

, 118 S. Ct. 1060 (1998) (citing U nited

States v. Lopez , 74 F.3d 575, 577 (5th Cir. 1996)). 4 See United States v. Di xon , 132 F.3d 192,

201 (5th Cir. 1997), cert. denied

, 118 S. Ct. 1581

(1998); Westbr ook , 119 F.3d at 1189; I nocencio

, 40 F.3d at 725.5

prove “that the defendant (1) associated with

the crimina l venture; (2) participated in the

venture; and (3) sought by action to make the

venture succeed.” Id

.

3.

Patterson and Adkism attack the

evidence as insufficient to establish a

conspiracy. The thrust of their argument

appear s directed at the first prong 

### S S the

agreement. They claim that the evidence

shows “there was a lack of an agreement to do

anything but look out for themselves while

they were individually selling drugs.” But,

contrary to t hei

r assertion, substantial evidence

supports the existence of a tacit agreement for

Patterso n to supply crack cocaine to other

dealers, who wou ld in turn sell it.

Furthermore, the evidence supports the jury's

implicit finding that those other dealers had a

ta cit arrangement to supply each other with

drugs if and when they ran out.

The district court rejected the

defendants' motion for acquittal , citing the

following evidence:

Going through t h e testimony

he re, Juan Council testified

that he bought crack coc a ine

from both Defendants. Aubrey

Jenkins, who is named in the

Indictment as one of the

alleged co-conspirators,

testified that he bou ght f rom

Mr. Adkism and that the sellers

of crack in Paris sup ported

each o t her by supplying each

other when they ran short. Al Green testified

about his role i n the delivery

on Janua r y 16, 1997, at

Johnson Park and his

participation wi th the

Government Informant

Smokey, who turned out to be

William Blo

ck. Al Green also

testified that he once traded a

shotgun for crack cocaine from

Stafford P a tterson in 1995.

William Block, t h e

Confident ial Informant,

testified about his actions on

January 16, 1997, inv o lving

the kilogram transaction w i th

Rodney Thomas.

Rodney T h omas then

testified that Stafford Patterson

fronted crack c o caine to him,

that he o nce accompanied

Stafford Patterson to Herb

Hill's house to pick

up money

for crack cocaine. Herb Hill is

one ofthe alleged coconspirators in the Indictment.

He also testified that he had an understanding with Michael

Adkism to supply each other if

they ran short of crack

cocaine. Rodney Thomas

further testified that on January

16, 1997, that he talked to

Staf f ord Patterson about

buying the kilogram of c r ack

cocaine and about the pri ce.

He went with Stafford

Patterson to Al

Green's to

discuss money. Later Stafford

Patterson, accordi ng to Rodney Thomas, gave Rodney

Thom as t he kilogram of

cocai ne that he obtained from

the Dillard s' house. And

finally, Rodney Thomas

t e stified that there was a sort

of agreement that Stafford

Patterson woul d supply

Ro dney Thomas, Mi chael

Adkism, Herb Hill, and others6

with crack cocaine.

Marcus Hooker

testif ied that he got his crack

fr o m Rodney Thomas, that

Rodney Tho m as told him that

the crack came from Patterson,

th a t Patterson once offered

Marcus Hooker drugs in return

for jumping on someone. Herb

Hill testified that he got his

cr a ck from Stafford Patterson

in order to resell it. And, by

the way, Marcus Hooker, is

one of t he named coconspirators in the Indictment.

Herb Hill also tes t ified that he

was with Patterson when

Patter s on delivered crack to

Michael Adkism. He testified

that Patterson fronted Rodney

Thomas and Chris Burns with

crack. Finally, Clinton Thomas

test ified that he had bought

crack cocaine from Stafford

Patterson, that he also bo ught

it from Michael Adkism, and

tha t Adkism said he got his

crack from Stafford Patterson.

This evidence provides an ample basis for the

jury to accept the governm ent 's theory

of the

case. Patterson and Adkism point out

weaknesses in the testimony of these sam e

witn esses. For example, they emphasize that

Council, Jenkins, Hooker and Fishe r denied

any agreement or network. The evidence,

however, allowed the jury to conclude that

Patterson conspi

red with Adkism, Thomas,

and others to distribute crack coc aine. The

jury also could have found a tac it, if not

explic it , agreement among the dealers to

supply each other when they ran short. The

argument that they acted independe n tly must

fail. 5 Patterson and Adkism rely heavily on

the lack of credibility of the co- conspi rators

who testified against t hem. The argument

appears directed at the alleged illegalit y of the

testimony, which we already have rejected. To

the extent the defendants seek to impugn their

credibility fo r our sufficiency of the evidence

review, arguing thei

r t estimony “should be

discounted,” we disagree. The appellants had

an opportuni ty before the jury to rai se questions about the witnesses' credibility, and

t hey did just that by asking about the plea

agreements and prior records. The jury must

have resolved credibility determi nations, which

are th eirs t o make, in favor of the

government. 6

Patterson also attacks the testimony of

the officers who worked on the case, emphasizing t hat not one of them provided

direct evidence linking him to t he drug deals

that the officer s witnessed. Yet, their

testimony substantiated the relationships

between other dealer s and the existence of a

conspiracy. Once the government establishes

the conspiracy, it needs to provide only slight

credible evidence linking Patterson to it. The

te st imo ny of numerous co-conspirators

implicat ing Patterso n as the source of the

crack more than suff

i ces to uphold his

conviction.

C.

The defe ndants style their third

argument as a varian ce between the

indictment, char g ing a single conspiracy, and

t he proof at trial, establishing multiple

conspiracies, if any. They fail, however, to

provide any legal

analysis. Their brief is

de v oid of even a single citation to a variance

case, or any explanation of what a variance is.

Perhaps this is because what they

actually proffer is not a variance argument, but

5 Cf

. Westbrook

, 119 F.3d at 1190 (rejecting

argument that dealer acted independently because

evidence allowed inference of involvement in

conspiracy). 6 See United States v. Davis

, 61 F.3d 291, 297

(5th Cir. 1995) (“It is well-settled that credibility

determinations are the sole province of th e jury .”); s ee

also Un ited States v. Payne , 99 F.3d 1273, 1278 (5th

Cir. 1996) (“[N]on-credibility is generally not a sound

basis for alleging sufficiency of th e evidence; it is the

jury 's function to determine credibility .”).7

a n elaboration of their challenge to the

sufficiency of the evidenc e. They expand on

the argument mentioned above that the

government faile d t o prove a single

conspiracy, and that the evidence supp orts

mult iple con spiracies, if any. The essence of

the argument is that the dealers here acted

independently, wi thout any of the

interdependence requi red of a single

conspiracy that links them together.

Regardless, we treat it as a variance argument and reject the challenge.

To obtain reversal of a conviction

because of a variance between the indictment

and the proof at trial, the defendants must

establish (1) a variance between the indictment

and the proof

at trial (2) that affected their

substantial rights. S ee United States v. Morris

, 46 F.3d 410, 414 (5th Cir. 1 995). The

analysis of whether a variance exists essentially

follows a sufficiency of the evidence

inquiry 

### SS we must determine whether the

government proved a single conspiracy at trial.

The principal factors we examine when we

count conspiracies are (1) the existence of a

comm o n go al, (2) the nature of the scheme,

and (3) t he overlapping of the participants in

the various dealings. S ee id

. at 415; United

S tates v. Maceo

, 947 F.2d 1191, 1196 (5th

Cir. 1991). As with a sufficiency of the

evidence challenge, we affirm the conviction of

a single conspiracy unless the evidence and all

reason able inferences drawn therefrom,

examined in th e light most favorable to the

verdict, preclude finding a single conspiracy

beyond a reasonable doubt. M orris

, 46 F.3d

at 415.

If we find a variance, we still do not

reverse unless it affected the d efendants'

substantial rights, i .e.

, prejudiced them. This

includes a failure to give adequate noti ce to

the defendants , and possible transference of

guilt from co-defendants. See id . at 417.

1.

The heart of the defendants' complaint

is that the government attempted and failed to prove a “wheel conspiracy.” They emphasize

that “there was no interacti o n between the

supposed conspirators who form the spokes of the wheel.” As in U nited States v. Levine

, 546

F.2d 658 (5th Cir. 1997), the case they cite,

the government may have established spokes,

but “the conspiracy lacks the rim of the wheel

t o enclose the spokes.” I d

. at 663 (inte rnal

quotati on omitted). Even if the dealers had a

common s upplier, they did not interact with

each other; there was no interdependence.

The first factor 

### SS common goal 

### SS generally does not present a challenging

factor for the government. We have adopted

an expansive notion of a common purpose.

Morris

, 46 F.3d at 415. Indeed, “the common

objectives test may have become a mere matter

of semantics.” U

nited State s v. Richerson

, 833 F.2d 1147, 1153 (5th Cir. 1987). We

have held that the goal of selling cocaine for

pro f it meets the common goal requirement.

See Morris , 46 F.3d at 415; Maceo

, 947 F.2d

at 1196.

The defendants rely on United States v.

Glinton , 154 F.3d 1245 (11th Cir. 1998), in

which the court held that the government had

not proved one over-arching conspiracy

because all the defendants had in common was

their supplier, who furnished cocaine to independent buyers. S ee id

. at 1251. This

does not attack the common goal requirement.

The court even recognized the “common goal,

to wit: profit f

ro m t he sale of cocaine.” I d

. Rather, the Glinto n court expressed concern

with the lack of “overlapping connection,” id .;

this we address in our second and third

factors.

Second, we must examine the nature of

the scheme. The go vernment rightly points

out that w e have moved away from such

artificial construct s as “wheel” conspiracies. 7

R ather, we take a more functional appr oach.

We must conclude that a jury could find the

nat ure of the scheme supports a single

7 “Conspiracies are as compl ex as the

versatility of human nature and federal protection

against them is not to be measur ed by spokes, hubs,

wheels, rims, chains or any one or all of today's galaxy

of mechanical molecular or atom ic forms.” U nited

States v. Perez , 489 F.2d 51, 59 n.11 (5th Cir. 1973).8

conspiracy if “the activities of one a spect of

t he scheme are necessary or advantageous t o

the success of another aspect of the scheme or

to the overall success of the venture.” M aceo

, 947 F.2d at 1197 (quoti ng U nited State s v.

DeVarona , 872 F.2d 114, 118 (5th Cir.

1989)).

Patterson could not have kept

suppl ying if the dealers did not distribute the

cocaine base; the distributors could not have

sold cocaine if Patterson did not supply it; and

nei ther Patterson nor the next-l evel

distributors could have sold the cocaine if their

buyers did not p urchase i t. 8 The jury could

have inferred that the tacit agreement among

the dealers to bo rrow crack from each other

when neede d was an essential part of this

distribution network, and necessary to keep it

functioning. Furthermore, the myriad channels

of distr i bution for Patterson certainly were advantageous to the overall scheme.

Third, we address whether the

par t icipants overlapped. Patterson and

Adkism adamantly insist that the dealers acted

i n dependently of each other. But “[a] single

conspiracy does not require every member to

participate in every transaction.” D eVarona

, 872 F.2d at 119. In fact, a pyramid scheme,

with a common supplier on top, is a common

form of conspira cy of which we have

a pproved. S ee Morris

, 46 F.3d a t 416;

Maceo

, 947 F.2d at 1197. Subst antial

evidence supports that Patterson provided

crack cocaine to numerous dealers. Here, we

have the added interdependence and overlap of

th e various dealers tacitly agreeing to supply

each other with

co caine base when they ran

sho rt and needed some. True, some of the

conspirators may have acted independently at

ti mes; but that does not preclude the jury's

findin g o f single conspiracy. 9 We find no variance between the indictment and the proof

at trial.

2.

Even if we did find a vari ance,

Pat terson and Adkism have not even

attempted to demonstrate prejudice from it.

Nor could they. The indictment itself made

clear t he scheme on which the government

relied, providing adequate not ice. The

te s timony the defendants elicited from coconspirato rs that they acted independently

demonstrates that the defendant s knew the

government's t heo ry and defended against it

accordingly.

They make no attem

pt, and would not

be able, to demonstrate prej udice from

improper transference o f guilt. “[W]here the

indictment alleges a single conspiracy and the

evidence established each defendant's

partic ipation in at least one conspiracy a

defendant's substantial rights are affected only

if the defendant can establish reversible error under general principles of joinder and

severance.” M

orris

, 46 F.3d at 417 (quoting

United States v. Jensen

, 41 F.3d 946, 956 (5th

Cir. 1994)). The government established at

least one conspiracy invo lving each defendant,

with Patterson suppl

y ing crack cocaine to

some other distributor who then either sold it

or distributed it to yet another dealer. Thus,

the defendants need to show re v ersible error

under joinder a nd severance principles 

### S S a

difficult task, given the court's discretion, even

when briefed and argued. We find no

prejudice.

D.

8 Cf

. Morris , 46 F.3d at 416 (“If the sellers

discontinued selling, there would be no cocaine for

. . . the purchasers to buy . . . . Likewise, the distribution

effort is critical to the success of the suppliers.”).

9 See United States v. Has s , 150 F.3d 443,

(continued...) (...continued)

448 (5th Cir. 1998) (“While

. . . some of the participants

in the conspiracy may have acted independently at times,

this does not serve a fatal blow to the overarching

conspiracy .”).9

Patterson contends that ther e is

insufficient evidence to support his conviction

for possession of crack cocaine with intent to

distribute, in violation of 21 U.S.C. § 841, and

aiding and abett i ng the same, pursuant to 18 U.S.C. § 2. As explained in more detail in

part III.B.1., supra

, when defendant s fail to

renew their motion for a judgment of acquittal

a t the end of their case, we review a sufficiency of the evidence challenge only for

manifest miscarriage of

justice. S ee Inocencio

, 40 F.3d at 724.

1.

To obtain a convic t ion of possession

with intent to distribute, the government must

prov e t hat the defendant (1) knowingly

(2) possessed a controlled substance (3) with

the intent to distribute it. 10 To establish that a

de f endant aided and abetted an offense, the

government mus t establish that he associated

with the criminal activity, participated in it,

and acted to help it succeed. Id . Patterson

does not challenge any particula r element of

t he offenses, but rather raises a general

challenge to whether the evidence links him to

the crime.

2.

T he government presented sufficient

evidence supporting its th eory that Patterson

delivered nearly a kilo of crack to Thomas,

who in turn sold i t to Crawford and Block.

This suffices to establish, at t he least, aiding

and abetting; indeed, the transaction would not

have been possible if Patterson had not

supplied the crack.

That the deal took place i s well

established. Thomas testified that he obtained

t he kilo from Patterson, as he always did.

Hooker t estified that Patterson and Thomas

met before the deal and that he saw Patterson

sitting in his car at the Razz matazz while the deal took plac e. Patterson tol d Hooker that

Thomas would return shortly; from Patterson's

apparent knowledge of when Thom a s would

return and the fact that he was sitting in his

car, the jury could infer that Patterson knew

what Thom as was doing and was waiting for

the pr oceeds of the sale. The record is not

devoid of evide nce, and evidence supporting

each element is far from tenuous.

E.

Patterson als o argues that the district

court e rred in admitting an alleged hearsay

statement of a co-conspirator pursuant to F ED

. R. E VID

. 801(d)(2)(E). The prosecution asked

Hook er who supplied Thomas with drugs.

The defense objected. The court required

evidence supporting the co-c onspirator

hearsa y exception before it would allow the

testimony.

After Thomas had testified regarding a conspiracy, th e court held that a conspiracy

existed and that the statements Thomas made

to Hooker were in furtherance thereof.

Hooker then testified that Thomas told him

Patt erson was his supplier and that Thomas

always had plenty of dope after Patterson

visite d. He also relayed Thomas's statement

that he was going to ask Patterson the pri ce

for a kilo deal, and that T homas wanted

Hooker to stage a hit to make Patterson think

Thomas had been robbed of the cash.

1.

Rule 801(d)(2)(E) provides that a

statement made by a co-conspirator during the

course of, and in furtherance of, a conspiracy

is not hearsay and may be admitted. S ee F ED

. R. E VID

. 801(d)(2)(E); United States v. ElZoubi

, 993 F.2d 442, 446 (5th Cir. 19 93).

Before admitting the testimony, “the court

must determine by a preponderance of the

evidence (1) that there was a conspi r acy

invo lving the declarant and the [defendant],

and (2) that the statem

ent was made 'during

the course and in furthera nce of the

conspiracy.'” B urton

, 126 F.3d at 671

(quoting Bourjaily v. United States , 483 U.S.

171, 175 (1987)) . We review evidentiary 1 0 See United States v. Delagarza-Villarreal

, 141 F.3d 133, 140 (5th Cir. 1997); United States v. Gonzal es , 121 F.3d 928, 936 (5th Cir. 1997), c ert.

denied

, 118 S. Ct. 726, and cert. denied

, 118 S. Ct. 1084

(1998).10

rulings for abuse of disc retion. 1 1 The court's

f indings that a statement was made by a c o

conspirator, dur ing and in furtherance of the

conspiracy, are findings of fact that we review

for clear error. 12

The record reveals that our revi ew imposes an even greater burden on the

a ppellants. When a party objects to t he

admission of evidence, the obj e ction must be

specific. “A sufficiently specific objection is

necessary at tri al so that testimony could be

take n, and argument received, on that issue;

and so that the district court would have dealt

with it.” Burton , 126 F.3d at 671.

In the context of evidence the

gove rnment proffers under F E D

. R. E VID

. 801(d)(2)(E), a

general objection to the

statement a s hearsay, or as not falling under

that rule, does not suffice to preserve the error

of the statement not furthering the conspiracy

for appeal. S ee id

. at 672-73. Rule

801(d)(2)(E) contains four poss ible bases for

objection: (1) that the declarant was not a coconspirator, (2) that the party against whom

the statement was offered was not a coconspira t or, (3) that the statement was not

made in the course of the conspiracy, and

(4) that the statement was not in furtherance of

the conspiracy. Id . at 673.

The defendants made the general

objection, “That's hearsay.” They did not

specifically raise the “in furtherance of” issue,

and the record was not developed on that

particular point; we review for plain error. To

reverse, we must find (1) an error (2) that is

plain and (3) that affects substantial rights, i.e.

, affected the outcom e of the trial, and (4) even

if these are true, we exercise our discretion to

correct the error only if it seriously affects the fairness, inte grity, or public reputation of

judicial proceedings. S ee id. at 674; United

States v. Calverley

, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc).

2.

Patterson argues that the statement

Thomas made to Hooker implicat ing hi m as

the su pplier of the kilo was not made in

furthera nce of the conspiracy, but “in

furtherance of a scheme di r ectly opposite” to the conspiracy, i.e. , to induce Hooker to help

Thomas rob the sup plier. 1 3 The government

replies that the conspiracy's object was for the

conspirators, including Patterson, Adkism,

Hooker and Thomas, to sell crack for a profit.

It does not matter who profited from the sale

o r t hat the conspirators may have turned on

each other.

“A statement is made in furtherance of

the co nspiracy if it advances the ultimate

objectives of the conspiracy.” 14 We frequently

have stated that “'in fu rtherance of a

conspiracy' is not to be construed too stri ctl y

lest the purpose of

t he exception be

defeated.” 15 And we consistently have

shunned an overly literal in t erpretati on of the

phrase. S ee Bu rton , 126 F.3d at 674;

Broussard , 80 F.3d at 1039.

We hav e found a statement to be in

1 1 See United States v. Williams , 132 F.3d

1055, 1059 (5th Cir. 199 8); United States v. Fike

, 82 F.3d 1315, 1329 (5th C ir. 1996), c ert. denied

, 520 U.S. 1131 (1997).

1 2 See United States v. Broussard

, 80 F.3 d

1025, 1039 (5th Cir. 1996); U nited States v. Stephens

, 964 F.2d 424, 434 (5th Cir. 1992). 13 Hooker also testified more generally that

he frequently received crack from Thomas, that

Thomas told him Patterson was his supplier, and that

Thomas alway s had plenty of crack cocaine after

Patterson visited. On appeal, the parties focus on the

statements related to the kilo deal. They do not present

arguments related to this general testimony from

earlier events, and we find no error in admitting it.

1 4 United States v. Snyder

, 930 F.2d 1090,

1095 (5th Cir. 1991) (citing United States v. Lechuga

, 888 F.2d 1472, 1479 (5th Cir. 1989)); s ee also

ElZoubi

, 993 F.2d at 446 (findi ng statement not in

furtherance of conspiracy because statement di d not

make conspiracy “more likely to succeed”).

1 5 Broussard

, 80 F.3d at 1039 ( citing

Lechuga

, 888 F.2d at 1480); see also

, e.g.

, Burton

, 126

F.3d at 674; Stephens

, 964 F.2d at 434; Snyder

, 930 F.2d

at 1095.11

furtherance of a conspiracy when it id ent ifies

the role of a co-conspirator to someone w h o

may need to know that role, or to allay

suspicions or concerns. 16 Similarly, an

identification furthers the conspirac y if it is

puffing, boasts, or is ot her conversation

designed to obtain the confidence of someone

who is a member of, or dea ling with, the

conspiracy. S ee United States v. Johnson

, 872

F.2d 612, 623 (5th Cir. 1989); Mille r

, 664

F.2d at 98. Statements also further a

conspiracy when they contain information that

facilitates the conspiracy's operations, see Snyder

, 930 F.2d at 1095, protect and conceal

a conspiracy, see Broussard

, 80 F.3d at 1039,

or are intended to affect future dealings

b et ween the parties, s ee United States v.

Patton , 594 F.2d 444, 447 (5th Cir. 1979).

3.

The district court plainly erred in

admitting Hooker's testimony related to the

source of the kilo for the final deal. 1 7 The

relevant conspiracy on which the government

relies is the indicted conspir acy 

### S S the one

between Patterson and others to bring crack

c o caine into the city and sell it at a profit

through various mid-level dealers. 1 8 In context, the i dent ification of Patterson did

nothing to advance that conspiracy. It did not

provide in fo rmation necessary or even

inc idental to the conspiracy's functioning. It

was not meant to allay suspicions or promote

confidence in the conspiracy.

Thomas identified Patterson as his

supplier as part of his own scheme t o rob

Patterson. It simply cannot be that the

sta t ement furthered the conspiracy to

distribute crack cocaine. It may be, as the

government contends, that “[i]t mattered n o t

who profited from the sale of illega l drugs or

that there was no honor among drug dealers.”

But the statement advanced a scheme that had

an objective opposed to, or at least in tension

with, the usual conspiracy by which Patterson

distributed drugs through mid-level dealers. 19

4.

Because the court plainly erred in

finding the statement in furtheran ce of the

conspiracy, and hence abused its discretion in

admitting the testimony, we must address the

third step o f plain error review: whether the

error affected substantial rights. We look for

prejudice to the defendant by performing a

harmle s s error analysis, as we would for any

erroneous evidentiar y admission. S ee ElZoubi

, 993 F.2d at 446; Means

, 695 F .2d at

818. We find the admission of hearsay

evidence harmless if, after considering the

other evidence in the case, we decide it did not actually contribute to, i. e. , have a substantial

impact on, the v erdict. S ee El-Zoubi

, 1 6 See Lechuga

, 888 F.2d at 1472; U nited

States v. Lindell

, 881 F.2d 1313, 1320 (5th Cir. 1989);

United States v. Magee

, 821 F.2d 2 34, 244 (5th Cir.

1987); United States v. Miller

, 664 F.2d 94, 98 (5th Cir.

1981); United States v. James

, 510 F.2d 546, 549-50

(5th Cir. 1975).

1 7 See United States v. Olano

, 507 U.S. 725,

734 (1993) (holding that an error is plain i f it is

“clear” or “obvious” under current law); C alverley

, 37 F.3d at 162-64 (same).

1 8 This need n ot be the case. The

government can rely on a different conspiracy between

the declarant and the defendant from the one for which

the defendant is indicted. S ee United States v. NarvizGuerra

, 148 F.3d 530, 536 n.2 (5th Cir.), cert. denied

, 119 S. Ct. 601 (1998); United States v. Arce

, 997 F.2d

1123, 1128 (5th Cir. 1993). But, as will be explained,

the only conspiracy that the identification of Patterson

as the supplier might further is a conspirac y between

Thomas and Hook to rob Patterson. Patterson is not a

member of that conspirac y SS he is the victim; the

statement did not further a conspiracy involving

(continued...) (...continued)

Patterson.

1 9 Cf

. El-Zoubi

, 993 F.2d 442 (holding

statement not in furtherance of conspiracy because

inference could no t be made that declarant thought

conspiracy would be more likely to succeed by

identifying the co-conspirator); United States v.

McConnell

, 988 F.2d 530, 533 (5th Cir. 1993)

(holding court abused disc r etion in admitting

statement because government laid no predicate that

statement advanced conspiracy's objective s); U nited

States v. Me ans , 695 F.2d 811, 818 (5th Cir. 1983)

(holding statement inadmissible as “mere idle chatter”

because record in no way indicated it was intended to

further the scheme).12

993 F.2d at 446.

With respect to the conspiracy co unt, ample evidence supports Patterson's link to the

conspiracy, and the hearsay's admission is

harmless. Patterson's possession with intent to

distribute count presents a closer c ase. The

only other direct evidence that he supplied the

crack is Thomas's testimony. Thomas faces

credibility problems, becaus e he is testifying

under a plea bargain. It is possible that the

jury would not have been as quick to belie v e

him if Hooker had not corroborated the

testimony.

Nonetheless, Hooker's testimony is

cumulative of Thomas's. “As long as it is not

factuall y insubstantial or incredible, the

uncorroborated testimony of a co-conspirator,

even one who has ch osen to cooperate wi th

the governm

ent in exchange for nonprosecution or leni ency , may be

constitutionally suf

fi ci ent evidence to convict.”

Westbrook

, 119 F.3d at 1190. In addition,

Hooker's t e stimony that Patterson had

supplied Thomas on other occasions, that

Patterson had met with Thomas earlier that

day, and that he saw Patterson, apparently

waiting in his car, while the deal was going

down and that Patterson knew when Thomas

would return, implying he knew of his

whereabouts, substantiate Thomas's testimony

that he received the kilo from Patterson. The

error is harmless. 20 F.

The defendants cont e nd that the

district court abused its discretion in admitting

a tape recording of a drug transaction (the sale

of a Big 8 among Block, G reen, and John

Fisher) because the tape bears no relevance to

the defendants and, even if relevant, it should

have been excluded under F ED

. R. E VID . 403.

We review evidentiary de cisio ns for abuse of

discretion. S ee Williams

, 132 F.3d at 1059;

Fike , 82 F.3d at 1329. Because the defense

objected only on relevance grounds, not on the

ground urged on appeal, we review only for

p lain error. S ee United States v. Cantu

, 167

F.3d 198, 204 (5th Cir. 1999). 21

The court did not abuse its discreti on

in finding the evidence relevant. Rule 401,

F ED

. R. E VID

., provides that evidenc e is

re levant if it has “any tendency to make the

existence of any fact that is of consequence to

the determination of the action more probable

. . . than it would be without the evidence.”

The tape recording revealed a transaction that

the grand jury included as Overt Act No. 29 of

its conspiracy char ge. That makes the tape

relevant to establishing the conspiracy in which

Adkism a nd Patterson were charged with

participating.

Nor did the district court plainly err in

not excluding the tape pursuan t to rul e 403,

which allows the court to exclude relevant

evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury

. . . .” As we have explained, 2 0 Even if we found the error prejudiced the

defendants, we would not reverse, for the error will not seriously affect the fairness, integrity , or public

reputation of judicial proceedings. Although the

harmless error analy sis may be close, that c l oseness weighs against reversing under this fourth plain-error

step. In addition, Patterson, as a member of the

conspiracy, cou ld h ave been convicted of possession

with intent to distribute under the Pinkerton doctrine.

See United States v. Narviz-Guerra

, 148 F.3d 530, 535

(5th Cir. 1998) (“A party to a conspiracy may be held

respon sible for a substantive offense that a coconspirator comm its in furtherance of the conspiracy

even i f the party did not participate in or have any

knowledge of that offense. P inkerton v. United States

, 328 U.S. 640, 647 [] (1946). Thus, once the

conspiracy and the defendant's knowing participation

therein is [ sic ] p r oved beyond a reasonable doubt, a

(continued...) (...continued)

defendant is guilty of the substantive acts his partners

committed in furtherance of the conspiracy .”). This,

too, weighs against finding the erro r affected the

fairne ss, integrity , or public reputation of judicial

proceedings.

2 1 Accord Un ited States v. Johnson , 722

F.2d 407, 409 (8th Cir. 1983) (holding that, because

defendant had objected to evidence below only on

grounds of relevance , court would review hearsay

objection for plain error).13

Relevant evidence is inherently

prejudicial; but it is only unfair

prejudice, substanti al ly

outweighing probative value,

which permits exclusion of

relevant matter under Rule

403. Unless t

rials are to be

conducted on scena rios, on

unreal fact s tailored and

sanitized for the occasion, the

application of Rule 403 must

be cautious and sparing.

United States v. Hall , 152 F.3d 381, 401 (5th

Cir . 1998) (quoti ng U

nited States v. McRae

, 593 F.2d 700, 707 (5th Cir. 1979)).

The defendants offer no reason, beyond bare asse r tion, why this evidence

should be excluded under rule 403. The tape,

reflecting two co-conspirators negotiati ng wi th

Block, is highly probative of the existence of a conspiracy. Furthermore, Block testified that

he used this taped transaction as a step toward

the next purchase 

### SS

the kilo deal. Green, who

appears on the tape, then set up the kilo deal

through Thom as; and through Thomas we

learn that he was supplied by Patterson.

Nothing appear s unfairly prejudicial,

misleading, or confusing. The defendants'

generic claim under rule 403 must fail, and the

district court did not plai nly err in admitting

the evidence.

AFFIRMED.